Pelton v. State , 60 Tex. Crim. 412 ( 1909 )

This case is now before us on motion for rehearing by appellant. The statement as to what allegations the indictment contains is correctly stated by Judge Ramsey in the original opinion.

Appellant insists that the indictment is not sufficient, and that unless the instrument imports a legal pecuniary obligation or the extraneous averments set up facts which show said pecuniary obligation, the indictment alleges no offense, and that the case should be reversed and dismissed, and in support of this proposition appellant refers us to the following authorities: Black v. State, 2 Texas Ct. Rep., 161; Cagle v. State,39 Tex. Crim. 109; Simms v. State, 32 Tex.Crim. Rep.; King v. State, 27 Texas Crim. App., 567.

From the extraneous allegations in the indictment we do not see wherein any pecuniary obligation is created, increased, discharged or defeated by the receipt if it were true. It is not charged in the indictment that it was appellant's duty to account for the money collected or paid out by him, nor is it charged that the company was in anywise bound to repay him if he paid the money out of his own funds. Nor is it alleged that the company was in any way bound to give him credit for the money if paid out of the company's funds. The allegation is that it was appellant's duty when he paid out the money to take a receipt therefor and turn it in to the company and for which he would receive credit as so much cash. Did he owe the company anything? There is no such allegation. Who would give him credit? The railroad company? It is not so alleged. Why any need to give Pelton credit for this receipt? There is no allegation of any reason why. What is meant by the expression "he would receive credit therefor?" Did he owe the company? There is no allegation that he did. If the credit they would give was gratuitous or for any other reason except because there was a legal obligation, then no legal obligation was created by this receipt.

Appellant insists that the indictment should have contained extraneous averments showing how the receipt, if true, would have affected, increased, created, diminished or discharged an existing pecuniary obligation. We think this matter is correctly disposed of in the original opinion. Appellant, as we understand, contends that the allegation that "it was appellant's duty" to have the party to whom the money was paid sign a receipt for same, and when signed that it was his "duty" to turn it into the company, does not import a legal obligation, but imports a moral obligation, and to say that it was his duty to do a certain thing imports no more legal obligation than to say it is a man's duty to support his aged father or mother. We do not agree with appellant in this contention. We believe that the word "duty" in the sense in which it is here used in the indictment means that appellant was under a legal obligation to have the party to whom the money was paid sign the receipt and turn it in to the company. To do this was a part of the services which appellant was under legal obligation to perform, and if intending to perform his service faithfully to the company he could not disregard this part of his services no more than any other party. A duty is a legal obligation to perform some act. 10 Am. Eng. Ency. of Law, p. 351.

We think the indictment would have been sufficient if it had contained the following allegations: That it was appellant's duty as the agent of the railroad company to account to said company for all moneys coming into his hands belonging to said railroad company, and that it was his duty as agent of the company to account to the company for all moneys paid out by him for the company, and that it was his duty as agent of said company to make a report daily, weekly or monthly, as the case may be, to said company of all moneys collected by him as agent for the company, and all moneys paid out by him for said company, and that when he as agent for said company paid out money for extra labor and took receipts therefor, that said company then and there and thereby became bound and compelled to repay Pelton, if paid out of his own money, or if same was paid out of the money of said company which had come into the possession of said Pelton as agent of said company, and for which it was his duty as such agent to account to said company, that then and in that event said company was bound and compelled to give him credit for such moneys upon such accounting and reporting. We do not think that the indictment is a valid one, and for this reason it should have been quashed by the court below, and as another indictment can be found, the offense not being barred by limitation we will notice the other questions presented.

As to the Fowler and Crews receipts, they were transactions precisely similar to and about the same time of this forgery, and were admissible to show the intent of appellant. Fonville v. State, 17 Texas Crim. App., 368; Mason v. State, 31 Tex. Crim. 306; Ham v. State, 4 Tex.Crim. Rep.; Francis v. State, 7 Texas Crim. App., 501; Mallory v. State, 37 Tex. Crim. 482; McGlasson v. State, 37 Tex.Crim. Rep..

In 5 Ency. of Ev., p. 868, the author says: "The fact that the accused uttered other false writings under similar circumstances is admissible," and in support of this doctrine he cites authorities from England and some sixteen States. We have not had access to these cases and do not know that they support the text.

In regard to the McAdams receipt, we do not think this transaction was admissible for the reason that it shows embezzlement of the funds of the company by appellant more than it does a forgery. As we understand the evidence, there is no evidence of McAdams that he did not sign the receipt for $625.13 already filled out. He says several times that he does not remember whether this particular receipt was filled out when he signed it or not. This being true, there was no evidence before the jury that this McAdams receipt was forged and this particular transaction, we think, became inadmissible.

In regard to the complaint of appellant that there is a variance between the allegations and the proof in reference to the receipt, the receipt as copied in the indictment shows "Received of D.B. Pelton, Agent," and the receipt introduced in evidence in one place in the statement of facts shows "Received of D.B. Pelton, Agt.," and in another place in the statement of facts it shows "Received of D.B. Pelton, Agent." This question can be very easily avoided in case of another indictment.

Appellant objects to the charge of the court wherein the court undertakes to limit the effect of the evidence in reference to the collateral forgeries. This portion of the court's charge is correctly set out in the original opinion. In reference to such charge, this court held in the case of Taylor v. State,50 Tex. Crim. 382, that the jury should be plainly told that before they can consider such collateral matters as evidence against the defendant on intent, on motive, etc., those collateral forgeries must be found to be forgeries. In the instant case the court charged the jury that "If any evidence has been introduced tending to show that defendant," etc. In order for these collateral matters to be used by the jury as evidence on the intent of the defendant, we think they must believe from the evidence beyond a reasonable doubt that they are forgeries. It is not sufficient if the evidence only tends to show them to be forgeries. If the evidence only tends to show them to be forgeries, then they are not admissible against a defendant.50 Tex. Crim. 384. The indictment charges that the company was not indebted to Jones in any amount, or if indebted it was for a much less amount than that set out in the receipt, the exact amount being for ten days' service at $35 per month. This appears to be somewhat contradictory. The allegation should be in accordance with the facts.

We return our thanks to the attorneys for the appellant for the able brief that they have filed in this case and which has assisted us a great deal in the determination of the questions involved.

Because we believe the indictment is insufficient, the motion for rehearing will be granted, the affirmance set aside, and the judgment of the lower court will now be reversed and the prosecution dismissed.

Reversed and dismissed.